Durham v. State

Court of Appeals of Georgia, Third Division

May 14, 2018

DURHAMv.THE STATE.

ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE
PHIPPS, J.

Phipps, Senior Appellate Court Judge.

On
appeal from his convictions for rape and child molestation,
Gary Durham argues that the trial court erred in denying his
plea in bar asserting a violation of his constitutional
speedy-trial right and in failing to grant his motion for
mistrial. Durham also argues that the evidence was
insufficient. Because the record shows that the trial court
never entered a written order including findings of fact and
conclusions of law as to Durham's claimed speedy-trial
violation, we vacate Durham's conviction and remand for
entry of an order including proper findings in accordance
with Higgenbottom v. State, 288 Ga. 429 (704 S.E.2d
786) (2011), and Barker v. Wingo, 407 U.S. 514 (92
S.Ct. 2182, 33 L.Ed.2d 101) (1972).

Constitutional speedy trial claims brought under the Sixth
Amendment and the Georgia Constitution are evaluated
according to the four-part test established in Barker, supra.
The Barker test requires the court to consider: (1) the
length of the delay, (2) the reason for the delay, (3) the
defendant's assertion of the right [to speedy trial], and
(4) the prejudice to the defendant. The fourth factor
requires the court to consider three interests: (i)
preventing oppressive pretrial incarceration, (ii) minimizing
anxiety and concern of the defendant, and (iii) limiting the
possibility that the defense will be impaired.

Higgenbottom, supra at 430 (citation and punctuation
omitted).

None of the factors are "either a necessary or
sufficient condition to the finding of a deprivation of the
right of speedy trial. Rather, they are related factors and
must be considered together with such other circumstances as
may be relevant. In sum, these factors have no talismanic
qualities; courts must still engage in a difficult and
sensitive balancing process."

Id., quoting Barker, supra at 533.

The
relevant portions of the record show that on December 9,
2009, Durham was arrested on warrants charging him with rape
and child molestation alleged to have occurred between
September 2004 and June 2007. In April 2012, after an
investigation, Durham was indicted for rape, solicitation of
sodomy of a child, and child molestation of two different
victims between September 2004 and June 2007. At a pretrial
hearing held on January 28, 2016, the trial court inquired
why the State had taken over six years to get the case to
trial and directed Durham to file a motion asserting that his
constitutional right to a speedy trial had been violated. On
the same day, Durham filed a plea in bar asserting a
violation of his constitutional speedy-trial right.

On the
morning of trial, the trial court made oral findings
including that the six-year delay between arrest and trial
was presumptively prejudicial, that the delay was the result
of the State's ordinary negligence, that Durham had
failed to assert his right in a timely way, and that Durham
had not been unduly prejudiced by the delay. The trial court
therefore denied the plea in bar, but did not file a written
order containing its findings of fact and conclusions of law.
After a jury found Durham guilty of rape and child
molestation, he was convicted and sentenced to life in
prison. Durham's motion for new trial was
denied.[1]

1. This
record shows that this trial court never entered an order
containing findings of fact and conclusions of law required
by Barker and Higgenbottom. "Absent
such findings, there is no exercise of discretion for this
Court to review." Higgenbottom, 288 Ga. at 431
(citation omitted). Although this Court once suggested that
oral findings on the record could be enough to satisfy
Barker, see Butler v. State, 309 Ga.App.
86, 87-88 (709 S.E.2d 293) (2011) ("Butler
I"), our Supreme Court later vacated that opinion
and required us to remand the case to the trial court
"for entry of a proper order" pursuant to
Barker and Higgenbottom. See Butler v.
State, 312 Ga.App. 513, 513 (718 S.E.2d 869) (2011)
("Butler II"). We therefore vacate this
trial court's judgment and remand this case with
direction that it enter a proper order, including findings of
fact and conclusions of law, as to the merits of Durham's
constitutional speedy-trial plea in bar. Richardson v.
State, 311 Ga.App. 369, 370 (715 S.E.2d 774) (2011)
(vacating and remanding for entry of a proper order under
Barker); Butler II, 312 Ga.App. at 513
(same); Higgenbottom, 288 Ga. at 431 (same).

2. In
light of the remand ordered in Division 1, we need not
address Durham's remaining enumerations of error, which
await the completion of the record below and any subsequent
appeal. See OCGA §§ 5-6-34 (a) (granting a right of
appeal from [a]ll final judgments"), 5-6-38 (a)
("[a] notice of appeal shall be filed within 30 days
after entry of the appealable decision or judgment complained
of").

Judgment
vacated and case remanded with direction.

Ellington, P. J., and ...

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